Saturday, 31 October 2015

Worst of Both Worlds (21/08/15)

The BBC reports that a former senior prosecutor, Brian McConnachie QC, has added his voice to the criticism of COPFS for ruling out any possibility, months ago, of bringing charges against the driver in the Glasgow 'bin lorry' crash.The most obvious point to have emerged from all the evidence given to the Fatal Accident Inquiry (FAI), so far, is that the driver (Harry Clarke) was not fit be be behind the wheel and while the driver did not set out to harm anyone that day, his behaviour in concealing his medical history from Glasgow City Council was a threat to public safety. Glasgow City Council can also be criticised for failing to follow up Harry Clarke's references and had they done so rigorously, it seems highly unlikely that the driver would ever have been employed, in a driving job at least. We now have the worst of both worlds in the sense that criminal charges have been ruled out by COPFS, albeit wrongly in my view, while the FAI descends into farce with the driver refusing to answer questions that may incriminate him in the unlikely event of a private prosecution going ahead.

Glasgow bin lorry: Former prosecutor says driver should have been charged

If it went ahead, anything Mr Clarke said in the FAI could be used against him in a subsequent trial.

An attempt by his QC to have the FAI adjourned while legal moves surrounding the possible private prosecution were considered has been rejected by the sheriff.

The Crown Office said two months after the December 2014 incident that no charges would be brought against Mr Clarke or his employers, Glasgow City Council.

Brian McConnachie QC is a former senior prosecutor at the Crown Office

The inquiry has heard allegations Mr Clarke lied about his medical history to doctors, the DVLA and his employer

Speaking to BBC Scotland, Mr McConnachie, who was principal advocate-depute (prosecutor) in the Crown Office from 2006-2009, said that the decision now appeared wrong.

He said: "On the basis of what we have heard from the inquiry, it does seem to be the case that they have very much jumped the gun in making the decision not to prosecute the driver.

"I don't know whether they felt there was some urgency because of the circumstances of the tragedy that happened that caused them to take that decision so quickly.

"But with hindsight, I would be very surprised if they are not now thinking that it was not perhaps their best idea."

Mr McConnachie said on the evidence heard at the FAI there was a prima facie case to have charged Mr Clarke with causing death by dangerous driving or the lesser charge of causing death by careless driving.

But he admitted that when they took their decision, it was unlikely that Crown counsel considered the possibility of a private prosecution - a device only used twice since 1909.

The prospect of such an action has meant the FAI is likely to conclude without the sheriff and the bereaved families having heard any significant evidence from Mr Clarke, the man at the centre of the tragedy.

Mr McConnachie said this could have been avoided by prosecuting him, and letting a jury decide if he was guilty of any charge, and then holding an FAI afterwards.

The Crown Office said its position had always been that it was aware of evidence that would be led at the inquiry. It added that the relevant information had been taken into account regarding a decision not to prosecute.

A spokesman said: "It is clear on the evidence at the time that the driver lost control of the bin lorry, resulting in the tragic deaths, he was unconscious and therefore not in control of his actions.

"He did not therefore have the necessary criminal state of mind required for a criminal prosecution.

"In addition, the Crown could not prove that it was foreseeable to the driver that driving on that day would result in a loss of consciousness.

"This still remains the case and all the relevant evidence regarding these points was known to Crown Counsel at the time the decision to take no proceedings was made."

About Me

Mark is an independent consultant with a wide range of clients in the public, private and 'not for profit' sectors - both in the UK and Europe.
In a previous life, Mark spent 20 years as a senior trade union official - latterly as Unison's Head of Local Government and Chief Negotiator in Scotland. Contact Mark by e-mail at: markirvine@compuserve.com